Case 1:19-cr-00576-BMC Document 182 Filed 01/19/23 Page 1 of 6 PageID #: 10406

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- X
:
UNITED STATES OF AMERICA, :
: ORDER
:
: 19-cr-576 (BMC)
- against - :
:
GENARO GARCIA LUNA, :
:
Defendant. :
:
---------------------------------------------------------- X

COGAN, District Judge.

Before the Court are four motions in limine: (1) the Government’s motion [150] to

preclude the defense from introducing certain evidence, (2) the Government’s motion [153] to

preclude cross-examination of Government witnesses on certain topics, (3) defendant's motion

[161] to preclude evidence of defendant's post-2012 conduct and wealth; and (4) the

Government’s motion [170] to preclude cross-examination of Veytia on certain topics.

The motions are granted in part and denied in part as set forth below.

I. Government’s Motion [150]

A. Post-Arrest Statements

The defense requested that the Government identify the specific post-arrest

statements it seeks to preclude. The Government did so at [175], and defendant has not objected.

The motion is therefore granted as to defendant’s post-arrest statements.

B. Statements by U.S. Government Officials

This is not the way to prove character. If defendant wants to call any of these

Government officials to testify as character witnesses, he may do so, and they will be subjected
Case 1:19-cr-00576-BMC Document 182 Filed 01/19/23 Page 2 of 6 PageID #: 10407

to cross-examination. Otherwise, the letters are hearsay and opinion given by Government

officials under political circumstances. For that reason, even if they were relevant, their very

limited probative value is substantially outweighed by their prejudicial impact, as the jury may

not recognize the context in which those statements were made.

C. Photographs with U.S. Government Officials

Defendant may utilize some of the photographs of his meetings with U.S. officials

during his opening and closing arguments, as “it is customary for the defendant to introduce

evidence concerning his background.” United States v. Blackwell, 853 F.2d 86, 88 (2d Cir.

1988), see also Fed. R. Evid. 401 advisory committee’s notes on 1972 proposed rules

(“Evidence which is essentially background in nature . . . is universally offered and admitted as

an aid to understanding.). The photographs will enable defendant to argue that his work

combatting Mexican drug cartels makes it less likely he joined in a conspiracy with a drug

cartel. However, given their limited probative value, defendant may only admit five of these

photographs of his choice.

D. Dismissal of Charges against Zepeda

This is granted as unopposed.

II. Government’s Motion [153]

Of the seventeen topics on which the Government sought to prevent cross-

examination, the defense concedes six. The remaining eleven are addressed below.

A. Cannibalism

Even assuming cooperating witnesses lied to the Government about prior acts of

cannibalism, the marginal probative value of that fact is substantially outweighed by the highly

inflammatory and distracting nature of the underlying conduct. Accordingly, the defense is

2
Case 1:19-cr-00576-BMC Document 182 Filed 01/19/23 Page 3 of 6 PageID #: 10408

precluded from asking about prior acts of cannibalism by Government witnesses or their denial

thereof. See United States v. Simpson, 205 F.3d 1326 (2d Cir. 2000).

B. 2012 Report

There are innumerable legitimate reasons why a prosecutor might decline to

prosecute that have nothing to do with the veracity of a witness statement. For these reasons,

the Court finds that the questionable probative value of the 2012 Report is outweighed by the

danger of jury confusion and a mini-trial on prosecutorial motivation.

Should Villareal Barragan testify at trial to facts that contradict those in his sworn

statement, defendant may use Villareal Barragan’s own statements for impeachment. But he

may not treat the notes of Mexican prosecutors as if they are in fact the statements of Villareal

Barragan, because they are not. In other words, Villareal Barragan can be impeached with his

own sworn statements but not with the summary or conclusions of Mexican prosecutors about

what he allegedly said. Beyond that, defendant may have a good faith basis to inquire about

statements Villareal Barragan allegedly made.

C. Violence Against Women and Sexual Misconduct

Some of this conduct is marginally probative of truthfulness – either because the

witness lied about the conduct or because the conduct was deceptive in nature – but the shock

value and resulting prejudice from these incidents far outweigh any probative value. See United

States v. Walker, 974 F.3d 193, 207 (2d Cir. 2020); United States v. Rodriguez, 648 F. App’x 9,

11 (2d Cir. 2016); United States v. Reed, 570 F. App’x 104, 109 (2d Cir. 2014); United States v.

Rabinowitz, 578 F.2d 910, 912 (2d Cir. 1978). 1

1
The defense suggests that Tolentino bribed the N.Y.P.D. to protect a brothel. If there was evidence of that, the
Government would have turned it over per Giglio v. United States, 405 U.S. 150 (1970). If they have not, this is far
too speculative to be raised before the jury.

3
Case 1:19-cr-00576-BMC Document 182 Filed 01/19/23 Page 4 of 6 PageID #: 10409

D. Prior Dishonesty Finding

Defendant may inquire of Arriola Marquez about the Colorado court’s factual finding

regarding his dishonesty during his proffers with the United States Attorney. See United States v.

White, 692 F.3d 235, 250 (2d Cir. 2012) (discussing United States v. Cedeno, 644 F.3d 79, 83 (2d

Cir. 2011); Basciano v. United States, No. 12-cv-280, 2014 WL 12978824, at *8 (E.D.N.Y. Dec.

17, 2014); Wadman v. United States, No. 08-cr-1295, 2016 WL 3963103, at *4 (S.D.N.Y. July 20,

2016). If he denies that such a finding was made, the defense may introduce the court’s statement.

The prosecutor’s statements at Arriola Marquez’s sentencing will not be admitted at trial.

They are the prosecutor’s assessment and opinion, and any probative value that opinion has is

substantially outweighed by the prejudicial impact. See United States v. Ford, 435 F.3d 204, 215

(2d Cir. 2006). An argument made by a prosecutor in court is poor evidence of what actually

happened – but a court’s finding is intrinsically reliable.

E. Murder Conspiracies

Extrinsic evidence is not admissible to attack Zambada Garcia’s character for

truthfulness, Fed. R. Evid. 608(b)(1), but the defense may ask him about this evidence to the

extent it calls his truthfulness into doubt. Such questioning must be limited to avoid confusion

of the issues and unnecessary delay.

F. Unorthodox Beliefs

Questions about aliens and the Illuminati would distract the jury, confuse the issues,

and waste time. See United States v. Sasso, 59 F.3d 341, 348 (2d Cir. 1995). They also come

too close to inquiring about religious beliefs, which many atheists and non-co-religionists

consider equally fanciful. The Second Circuit affirmed exclusion of this evidence in United

States v. Guzman Loera, 24 F.4th 144, 159 (2d Cir. 2022), and defendant has not persuaded the

Court that it and the Second Circuit were wrong. For the same reason, the Court denies

4
Case 1:19-cr-00576-BMC Document 182 Filed 01/19/23 Page 5 of 6 PageID #: 10410

defendant’s request for a witness competency hearing for Cifuentes Villa. Heterodox beliefs,

standing alone, do not render a witness incompetent to testify.

G. Canedo Zavaleta’s Arrest

Whether or not Canedo Zavaleta’s arrest was, in fact, retaliation by defendant,

Canedo Zavaleta thinks that to be the case, and that’s a clear basis for him to be biased against

defendant. The relevance of this potential bias is not outweighed by the 403 balancing factors

given the non-violent nature of the crimes charged and that the charges were ultimately dropped.

See Brinson v. Walker, 547 F.3d 387, 392 (2d Cir. 2008).

III. The Defendant’s Motion [161]

There is nothing criminal about defendant leveraging his former government contacts.

Absent evidence that defendant’s expensive lifestyle was financed by the Sinaloa Cartel,

evidence of his post-2012 wealth is irrelevant. See, e.g., United States v. James, No. 19-cr-0382,

2022 WL 2106268, at *11 (E.D.N.Y. June 10, 2022) (quoting United States v. Cardena, 842 F.3d

959, 983–84 (7th Cir. 2016). It is also unfairly prejudicial. See, e.g., United States v. Stahl, 616

F.2d 30, 32 (2d Cir. 1980); Kinsey v. Cendant Corp., 588 F. Supp. 2d 516, 518–19 (S.D.N.Y.

2008); Aristocrat Leisure Ltd. v. Deutsche Bank Tr. Co. Ams., 04-cv-10014, 2009 WL 3111766,

at *6–7 (S.D.N.Y. Sept. 28, 2009). The Court will not allow the jury to speculate that

defendant’s post-office lifestyle was financed with cartel money when there is no evidence that is

the case.

As to the Government’s argument that defendant’s post-2012 consulting work should

come in because it shows he had lots of connections in the Mexican government, that fact will

be obvious by virtue of his former position. The Government is free to introduce evidence of

opportunity during the relevant period. See Old Chief v. United States, 519 U.S. 172, 186

5
Case 1:19-cr-00576-BMC Document 182 Filed 01/19/23 Page 6 of 6 PageID #: 10411

(1997). But unless the Government has evidence that defendant was doing consulting work

with cartel members, this evidence is plainly irrelevant.

Some of defendant’s post-2012 activity will necessarily come in. Presumably, the

defense – if they wish to argue that defendant withdrew from any conspiracy – may want to

show that he retired to Miami, started his own business, and so on. But absent a nexus between

defendant’s post-2012 conduct and the crimes charged in this case, his business acumen is

irrelevant.

IV. The Government’s Motion [170]

The Government moves to prevent the defense from asking Veytia about adverse

credibility findings by various arms of the federal government and the related decision not to

offer him a cooperation agreement. Because the defense has not seen the underlying materials

and thus cannot meaningfully respond to the Government’s motion, the Government must

produce all materials in its possession concerning Veytia’s credibility.

SO ORDERED.

______________________________________
U.S.D.J.

Dated: Brooklyn, New York

January 19, 2023